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PETITIONER: BHAGEL SINGH

       Vs.

RESPONDENT: SWARAN SINGH AND ORS.

DATE OF JUDGMENT22/01/1992

BENCH: KULDIP SINGH (J) BENCH: KULDIP SINGH (J) SAHAI, R.M. (J)

CITATION:  1992 AIR  682            1992 SCR  (1) 338  1992 SCC  Supl.  (2)  96 JT 1992 (1)   252  1992 SCALE  (1)126

ACT: Indian Penal Code 1860.      Ss.  34,  302-Free  fight  between  rival   parties-Two persons  shot  dead-Whether  participants  responsible  for their individual acts. Code of Criminal Procedure, 1973      S.  313-Statement of accused setting up  a  defence-Not supported  by  other evidence-Medical  evidence-Contrary  to defence version-Credibility of statement.

HEADNOTE:      A  dispute in respect of a drain to be dug through  the fields of the appellant-complainant led to a quarrel between the  complainant party and the respondents no. 1 to  4  (all brothers  and arrayed as accused nos. 1 to  4  respectively, before   the  trial  court)  in  which,  according  to   the prosecution  case, respondent no 4 received  minor  injuries whereas  PW  14  on the  complainant’s  side  was  seriously injured;  and while he was being taken to the city  hospital in  a tractor trolley accused nos. 1 to 4 armed with  rifle, kirpan, gun and sua respectively, challenged the complainant party near the village bus stop.  Thereupon deceased-1  with some  others got down from the tractor and went  forward  to persuade accused no. 1 to keep peace while the latter  fired two  successive shots hitting deceased-1 and deceased-2  who died  on  the spot.  Accused no 3 fired  two  shots  causing injuries to two other persons of complainant party.  Accused no 3 gave kirpan blows to PW 16 as also to PW 15, who was in the  grip of accused no. 4.  In the incident, accused no.  1 also received injuries.  The case originated with the F.I.R. lodged by the complainant-appellant (PW 8) and culminated in the trial of the four accused.      The prosecution produced the complainant-appellant  (PW 8) and the three injured (PW 14-16) as eye-witnesses.      Accused  no. 1 in his statement under s. 313  Cr.  P.C. set up a defence plea stating that there was a minor quarrel between the                                                        339 parties  in  the fields in the  presence  of  Sub-Divisional Officer and on his intervention they returned to the  house. After some time when they came to know that the other  party

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was  causing injuries to accused no 4, accused nos. 1  to  3 armed with rifle, kirpan and gun respectively, went there in order  to rescue him but PW 15 caught hold of accused no.  1 and  the  complainant started giving him Takwa  blows  while deceased-2  gave  him stick-blows and in  this  process  the rifle  went  off.  He further stated that accused  nos.  3-4 also suffered injuries.      The  trial court, accepting the  eye-witness  testimony and rejecting the defence plea, held that the accused  party was  aggressor and as such charges against them were  proved beyond  reasonable doubt.  It convicted accused no. 1  under s.  302 IPC and each of accused nos. 2-4 under s.  302  read with  s. 34 IPC, and sentenced all of them  in  imprisonment for  life.   They were also awarded sentence of  fine.   The trial  court further convicted accused nos. 2 to 4 under  s. 307  & 325 IPC, 326 IPC, and 323 IPC respectively, and  also convicted all the accused under these sections with the  aid of s. 34 IPC. Accused nos. 1 and 3 were also convicted under the Arms Act.      On  appeal,  the  High  Court,  accepting  the  defence version  as  more  probable than that  of  the  prosecution, reversed the findings of the trial court, allowed the appeal and  acquitted all the accused.  Aggrieved, the  complainant preferred the appeal by special leave to this Court.      Accepting  the  appeal to the extent  of  acquittal  of accused no. 1 and setting it  aside, this Court,      HELD : 1.1 The findings of the High Court  that-accused No.  4  had  been disabled by the time  the  other  accused, persons  reached the spot and as such the accused party  was justified  in  acting in self-defence; accused  nos.  1  was injured by the complainant party before he had actually used his rifle; and that accused nos. 1 and 3 fired from a  close range-apart  from being contrary to the eyewitness  account, are belied by the medical evidence on record. [345 GH;346 C- D; 347 A-B]      1.2  The  doctor (PW 3) who examined respondent  no.  4 found simple injuries on his person. He nowhere stated  that the  accused became disabled because of the  injuries.   The nature of the injuries was such that the conclusion  reached by the High Court was without any basis. [pp. 345 H; 346 A]                                                        340      1.3  The  injuries  on the person  of  accused  no.  1, including  the  one with a sharp edged weapon on  the  head, were  much  more serious than those of accused nos.  4.   If accused  no. 1 who was armed with a rifle could be given  12 injuries  with  different weapons at the time when  all  the four accused persons were present on the spot, there was  no reason why accused no. 4 could not have been given  injuries at the same time. [p. 346 BC]      1.4.  Accused no. 1 in his statement under s. 313,  Cr. P.C. specifically stated that accused no 4 suffered injuries at  the hands of the other party which obviously means  that he was given beating at the same time when accused no. 1 was injured. [p. 346 C]      1.5. Looking at the nature of injuries and the  opinion of the doctor it cannot be believed that accused no. 1 could have fired two shots killing deceased-1 and deceased-2 after receiving  the  injuries.   The trial  court  was  right  in holding  that  after  receiving 12  injuries  and  with  his condition  as  opined  by the doctor  it  was  difficult  to believe  that  accused no. 1 was in a position to  fire  the shots.   He  must  have,  therefore,  used  his  gun  before receiving the injuries. [p. 346 H; 347 A]      1.6.  The doctor who conducted the post-mortem  on  the dead body of deceased-1 stated that there was no blackening,

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scorching  or tattooing which indicates that the shots  were not fired from a close range. [p. 347 B]      2.1  The defence version as given by respondent  no.  1 does not inspire confidence. [p. 347 B-C]      2.2  If  PW  15 caught hold of accused no.  1  and  the appellant  gave  Takwa blow on his head he  could  not  have possibly  fired two shots killing the two deceased.  In  any case,  even  if he was in a position to fire  the  shots  he would  have  first fired at the appellant who was  the  main enemy  and  was  hitting  him  with  Takwa.   It  is  highly improvable that in that situation he would have fired at the two deceased.  Even otherwise, accused no. 1 had not  stated how  the  rifle  held  by him went  off.   No  evidence  was produced to further clarify the defence version. [p. 347 CD]      2.3  The High Court, therefore, erred in accepting  the defence  version  put  forward  by  accused  no.  1  in  his statement under s. 313, Criminal Procedure Code. [p. 347 D]                                                        341      3.1  The trial court was not right in holding that  the accused party was the aggressor. [p. 347 E]      3.2 There were bitter feelings between the parties  and the  tempers were high.  The accused party was in favour  of digging the drain whereas the complainant party was  against the  proposal  because the drain was passing  through  their fields.  On the day of occurrence the complainant party gave beating  to accused no. 4 and thereafter the  accused  party injured  PW 14 belonging to the complainant  party.   Before the  main  occurrence took place sufficient  heat  had  been generated  between the parties and they were itching  for  a show-down. [pp. 347 E-F]      3.3  The  only  probable conclusion  is  that  the  two parties  came  across each other and had a free fight  as  a result of which both sides suffered injuries and two persons died.  In such a situation the participants are  responsible for their individual acts. [p. 347 G]      4.1  Both the courts below, though  giving  conflicting verdicts,  have rightly come to the conclusion that the  two deceased were killed by the gun shots fired by accused no. 1 who  in  his statement under s. 313, Cr.  P.C.  stated  that while injuries were being caused to him his rifle went  off. [pp. 347 GH; 348 A]      4.2  Accused  no  1 is, therefore,  guilty  of  causing murder  of  the two deceased and  is  accordingly  convicted under  s. 302 IPC and sentenced to imprisonment for life  on the  two  counts.   There  is  no  evidence  to  prove   the commission  of any offence by the other participants  beyond reasonable  doubt.   Accused  nos. 2 to  4  are,  therefore, acquitted by giving them benefit of doubt. [p. 348 A-B]

JUDGMENT:      CRIMINAL  APPELLATE JURISDICTION : Criminal  Appeal  No 302 of 1980.      From the Judgment and Order dated the 2.11.1979 of  the Punjab and Haryana High Court in Crl. A. No. 455 of 1978.      S.K. Jain for the Appellant.      R.S. Sodhi for the Respondents.      The Judgment of the Court was delivered by                                                        342      KULDIP  SINGH, J. Swaran Singh and his  brothers  Avtar Singh,  Ajmer  Singh and Rajinder Singh were tried  for  the murder of Kandhara Singh and Darbara Singh.  They were  also tried  for  causing injuries to Tarlok  Singh, Sadha  Singh, Anokh Singh, Sukhdev Singh and Boor Singh.  Swaran Singh and

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Ajmer  Singh were further tried under Arms Act.   The  trial court  convicted  Swaran Singh under Section  302,  IPC  and sentenced  him to imprisonment for life on two counts. Other accused  were sentenced with the aid of Section 34,  IPC  to imprisonment  for life.  They were also awarded sentence  of fine.  Ajmer  Singh,  Avtar Singh and  Rajinder  Singh  were further convicted under section 307 and 325 IPC, 326 IPC and 323  IPC respectively.  All the four accused  were  inter-se convicted under these sections with the aid of 34, IPC.  The High Court, on appeal, set aside the conviction and sentence of  all the accused and acquitted them.  This appeal by  way of special leave is by the complainant against the  judgment of the High Court.      We may briefly notice the prosecution story as recorded in the first information report lodged by Baghel Singh PW 8. A drain was to be dug up through the village. It was to pass through the fields of Baghel Singh, Complainant Swaran Singh accused  was  the sarpanch of the village.   He  wanted  the drain to be dug whereas Baghel Singh was opposed to it.   On July 23, 1977 at about 5.15 p.m. the Sub-Divisional  Officer accompanied  by a police inspector visited the village in  a Government jeep in order to inspect the site of the proposed drain.  The jeep was parked at some distance from the  site. The accused and the complainant parties were present. Swaran Singh  accused was armed with a pistol, Ajmer Singh  with  a dang  and Rajinder Singh was having a Neza.  There was  some altercation  between the groups and Rajinder Singh  received minor  injuries  at the hands of the complainants.   At  the same  time  Swaran  Singh, Ajmer Singh  and  Rajinder  Singh accused  caused  injuries  to Boor Singh  P.W.  14  who  was standing  by the side of the Government jeep.  Baghel  Singh and  others  raised  an alarm upon  which  the  above  named accused  persons left Boor Singh and went away.  Boor  Singh who  had  suffered  number of injuries  on  his  person  was brought  to  the village in the jeep of  the  Sub-Divisional Officer.  Boor Singh was put in a tractor trolley for taking him to the hospital in Ferozepur city.  Baghel Singh P.W.8, Anokh  Singh P.W. 15. Sukhdev Singh P.W. 16, Kandhara Singh, Darbara Singh and some others also sat in the trolley.  When they  reached  near bus stand of the village,  Swaran  Singh accused armed with a rifle, Ajmer Singh accused armed with a gun,  Avtar Singh accused armed with a Kirpan  and  Rajinder Singh armed with a sua came running toward the trolley  from the village side.  They were raising threats that they would not  allow  Baghel  Singh and his  companions  to  go.   The tractor was stopped and some of the occupants got                                                        343 down.   Kandhara  Singh went forward and tried  to  persuade Swaran  Singh to keep peace.  The latter, however,  fired  a shot which hit Kandhara Singh on the left side of chest  and he  fell  down.  Swaran Singh fired  again  hitting  Darbara singh  who also fell down.  Both Kandhara Singh and  Darbara Singh died on the spot.  Ajmer Singh accused fired two shots from  his gun injuring Tarlok Singh and Sadha  Singh.  Avtar Singh gave a Kirpan blow to Anokh Singh on his head.   Avtar Singh also gave a Kirpan blow on the right wrist of  Sukhdev Singh. Rajinder Singh took Anokh singh in his grip.   Baghel Singh kept on raising alarm while standing near the tractor. According  to Baghel Singh "Swaran Singh etc. also  received injuries from us in our self-defence".  All the four accused thereafter  went away from the place of occurrence.   Baghel Singh  went  to  the  police  station  to  lodge  the  first information report which was recorded at 7.30 p.m.      Nine  injuries were found on the person of  Boor  Singh which included two grievous injuries.  The bones  underneath

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left  forearm  were  fractured.  Swaran  Singh  accused  was examined  by  the doctor at 6.45 a.m. on July 24,  1977  who found 12 injuries on his person.  The doctor opined that his condition  was very serious.  Five of the injuries  were  on the head.  There was an incised wound 7 cm x 1 cm on the top of the head which was bone deep.  Rajinder Singh accused had ten  simple injuries on his person.  It is not necessary  to note the injuries on the other members of the accused or the complainant party.      The  occurrence took place at about 5.25 p.m., the  FIR was  lodged at 7.30 p.m. and the special report reached  the Magistrate at 11 p.m. the same day.      The  prosecution  produced Baghel Singh  P.W.  8,  Boor Singh P.W. 14, Anokh Singh P.W. 15 and Sukhdev Singh P.W. 16 as eye-witnesses.  Except Baghel Singh the other three  were injured witnesses.      Swaran  Singh  accused in his statement  under  section 313,  Criminal  Procedure Code set up  the  defence-plea  as under:          "S.D.O.  came to village to inspect the spot  where          the  drain was to be dug.  There was minor  quarrel          in the fields. S.D.O. intervened and separated  the          parties.    We  returned  to  the   house.    After          sometime, we came to know that the other party  was          causing  injuries  to my  brother  Rajinder  Singh.          Myself armed with a rifle, Ajmer Singh armed with a          gun, and Avtar Singh armed with a kirpan went there          went  there  to rescue Rajinder  Singh.   We  found          Baghel Singh, Kandhara Singh, Darbara Singh, Anokh                                                        344          Singh,  Sukhdev Singh, Harbhej Singh, Tarlok  Singh          and Boor Singh, causing injuries to Rajinder Singh.          I  intervened  to rescue Rajinder Singh  but  Anokh          Singh caught hold of me.  Baghel Singh gave a takwa          blow  hitting on my head.  Kandhara  Singh  started          giving  stick blows to me.  When the injuries  were          being  caused, the rifle went off, Avtar Singh  and          Rajinder  Singh  also  suffered  injuries  in   the          meantime at the hands of the other party.  We  were          medically  examined.  My statement was recorded  by          the police in the hospital".      The  trial  court accepted the  eye-witness  testimony, rejected  the defence-plea and came to the  conclusion  that the  accused  party was aggressor and as  such  the  charges against them were proved beyond reasonable doubt.  The  High Court  without  adverting  to  the  testimony  of  the  eye- witnesses  reversed the findings of the trial court  on  the ground  that  the defence-plea was more  probable  than  the prosecution  version.  The High Court accepted the  defence- plea and acquitted the accused.  The High Court accepted the defence version on the following reasoning :          "According to the eye-witnesses, there was a  minor          altercation in the presence of the S.D.O. in  which          Rajinder  Singh appellant had  received  some  fist          blows.   They have also stated that Rajinder  Singh          appellant  was  armed  with a  sua  when  the  main          occurrence  took place near the bus stand.   Baghel          Singh  PW  8  has,  however,  admitted  that   this          appellant did not wield his neza at the time of the          main occurrence.  This is a tell-tale  circumstance          which goes to establish that probably by that  time          this  appellant  had been disabled because  of  the          injuries  received  by  him at  the  hands  of  the          complainant party.  Otherwise, there appears to  be          no  earthly  reason  for  this  appellant  to  have

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        refrained from using the sua when his real  brother          Swaran  Singh  was  being  seriously  beaten,  even          though   he   was  armed  with   a   rifle.    This          circumstance  goes a long way to make  the  defence          version  more  probable.   The  type  of   injuries          received by this appellant clearly show that he had          been attacked by more than one person who had  been          armed  with  lathis or takwas which had  been  used          from wrong side.  This could only have happened  if          he  had  come across the complainant party  in  the          absence  of  Swaran Singh, Avtar  Singh  and  Ajmer          Singh-his  real  brothers.  It appears to  us  that          while  Boor  Singh  PW 14 was being  taken  on  the          tractor-trolley   to the hospital,  Rajinder  Singh          appellant happened to come across them when some of          the members of the complainant party started giving          him a                                                        345          beating.   It matters little whether he was  coming          on  a  loaded  or an empty  cart.   On  receipt  of          injuries  he  might  have  raised  an  alarm  which          attracted the other three appellants who came there          armed  as suggested by the  prosecution  witnesses.          Furthermore   if  Swaran  Singh  and  Ajmer   Singh          appellants  had entertained  aggressive  intentions          from the very beginning, they would have fired from          their  respective fire-arms at the complaint  party          from  some  distance.  On the other hand,  we  find          that  Swaran  Singh  appellant had as  many  as  12          injuries  on his person and Avtar  Singh  appellant          had  three injuries on his person.  These  injuries          could   have  been  inflicted  upon  Swaran   Singh          appellant  before he had actually put his rifle  to          use.   It is somewhat difficult to reconstruct  the          original scene but the probabilities are that  even          when  he  came armed with a rifle on  the  spot  he          exercised  discretion  in the hope that  the  other          party  would  perhaps leave  his  brother  Rajinder          Singh  appellant on seeing him armed with a  rifle.          This  however, did not happen and on the other hand          he  was  also  subjected  to  an  attack.   It  was          probably at that time that he fired two shots  from          his rifle hitting both the deceased.  He might have          received  some  injuries before he  fired  the  two          shots  and some injuries thereafter but that  again          is  immaterial.   Once  it is  held  that  Rajinder          Singh  appellant was being beaten by more than  one          person,  this appellant did have the right to  save          his  life  and  also  his  own  life  when  he  was          attacked.   Ajmer Singh appellant also  appears  to          have fired two shots from his gun when he saw  that          Swaran  Singh appellant, in spite of his holding  a          rifle,  had  been  disabled.   In  any  event,  the          defence  plea  is  not  of  that  type  as  can  be          dismissed  on first sight.  On the other hand,  the          circumstances  enumerated  by us show that  it  was          somewhat more probable."      We  are  of the view that the High Court  reasoning  is based  on surmises and conjectures.  The main  reason  which weighed with the High Court was that Rajinder Singh  accused had been disabled by the time other accused persons  reached on  the  spot and as such they were justified in  acting  in self-defence.   According  to the High Court,  had  Rajinder Singh  not been disabled he would have come forward to  help his  brother  Swaran Singh who was being  seriously  beaten.

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Apart  from the eye-witnesses, the medical  evidence  belies the  conclusion reached by the High Court.   Rajinder  Singh was examined by the doctor at 1.00 a.m. on July 24, 1977 and found  ten simple injuries on his person. Dr. Amarjit  Singh who  examined  Rajinder Singh was produced as DW 3.  He  was only asked to give the details of the injuries.  He  nowhere stated that Rajinder Singh became                                                        346 disabled  because  of  the injuries received  by  him.   The nature  of the injuries is such that the conclusion  reached by  the  High Court is without any basis.   The  High  court finding  that  the  nature  of injuries  on  the  person  of Rajinder Singh were such that the same could only be  caused when  the  other three accused were not present  is  further based on conjectures.  The injuries on the person of  Swaran Singh  were much more serious than that of  Rajinder  Singh. There  were 12 injuries on the person of Swaran Singh  which included one grievous injury on the head with a sharp  edged weapon.  If Swaran Singh who was armed with a rifle could be given  12 injuries with different weapons at the  time  when all the four accused persons were present on the spot  there is  no reason why Rajinder Singh could not have  been  given injuries at the same time.  In any case Swaran Singh in  his statement   under  section  313,  Criminal  Procedure   Code reproduced above has specifically stated that Rajinder Singh was  given  beating at the same time when Swaran  Singh  was injured.   The finding of the High Court that  Swaran  Singh accused  was given injuries by the complainant party  before he  had actually used his rifle is contrary to  the  medical evidence  on the record.  Admittedly there were 12  injuries on the person of Swaran Singh. Dr. Sandhu, Medical  Officer, Civil Hospital, Ferozpur examined as DW 2 stated as under:          "General condition.          Pulse.  130 per minute.  B.P.  70/40  M.M.  of   MG.          Respiratory  rate 24 per minute. Pupils  equal  and          reacted to light, the patient delirious and  talked          irrelevant.    The  general  condition   was   very          serious.   Injuries  No. 1 to 6 and  8  kept  under          observation.   Rest all simple.  Injury no.  1  was          caused by sharp edged weapon. Rest were caused by a          blunt  weapon.   The duration of the  injuries  was          within  24  hours.   I have  brought  the  original          medico legal report which is in my hands and  bears          my signatures.  Injury no. 1 was declared  grevious          after X-ray report.          XXXn          Q. Was the condition of the patient serious because          of the injuries ?          A. Yes."      Looking  at the nature of injuries and the  opinion  of the  doctor  it is difficult to believe  that  Swaran  Singh could  have  fired  two shots  killing  Kandhara  Singh  and Darbara  Singh after receiving the injuries.  We agree  with the  trial court that after receiving 12 injuries  and  with his condition                                                        347 as  opined  by the doctor it is difficult  to  believe  that Swaran  Singh  was in position to fire the shots.   He  must have, therefore, used his gun before receiving the injuries. The finding reached by the High Court that Swaran Singh  and Ajmer Singh fired from a close range is again belied by  the medical evidence.  Dr. Birender Pal Singh PW3 who  conducted the  post mortem on the dead body of Kandhara  Singh  stated that  there was no blackening, scorching or tattooing  which indicates that the shots were not fired from a close range.

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    The  defence  version as given by Swaran Singh  to  our mind  does  not inspire confidence.  If Anokh  Singh  caught hold of Swaran Singh and Baghel Singh gave Takwa blow on his head  he  could not have possibly fired  two  shots  killing Kandhara  Singh and Darbara Singh.  In any case, even if  he was  in  a position to fire the shots he  would  have  first fired at Baghel Singh who was the main enemy and was hitting him  with  Takwa.   It is highly  improbable  that  in  that situation  he  would have fired at Kandhara  Singh  who  was holding  a  stick and Darbara Singh who was  no  where  near Swaran Singh. Even otherwise Swaran Singh had not stated how the rifle held by him went off.  No evidence was produced to further  clarify  the  defence  version.   The  High  Court, therefore,  erred  in  accepting  the  defence  version  put forward  by  Swaran  Singh accused in  his  statement  under section 313, Criminal Procedure Code.      While  rejecting the plea of self-defence  and  setting aside  the High Court verdict we are not inclined  to  agree with  the  trial  court  that  the  accused  party  was  the aggressor.   There were bitter feelings between the  parties and the tempers were high.  The accused party was in  favour of  digging  the  drain whereas the  complainant  party  was against  the proposal because the drain was passing  through their fields.  It is the prosecution case that on the day of occurrence  the complainant party gave beating  to  Rajinder Singh accused and thereafter the accused party injured  Boor Singh  belonging to the complainant party.  Before the  main occurrence took place at 5.25 p.m. sufficient heat had  been generated  between the parties and they were itching  for  a show-down.   The  only probable conclusion is that  the  two parties  came  across each other and had a free fight  as  a result of which both sides suffered injuries and two persons died.  In such a situation the participants are  responsible for their individual acts.      Both  the  courts  below,  though  giving   conflicting verdicts,  have come to the conclusion that  Kandhara  Singh and  Darbara  Singh were killed by the gun  shots  fired  by Swaran Singh.  In his statement under section 313,  Criminal Procedure  Code  he stated that while  injuries  were  being caused  to him the rifle with which he has armed  went  off. Swaran Singh is,                                                        348 therefore,  guilty of causing murder of Kandhara  Singh  and Darbara  Singh.   We, therefore, convict him  under  section 302,  IPC and sentence him to imprisonment for life  on  the two  counts.  So far as the other participants in  the  free fight  are  concerned  there is no  evidence  to  prove  the commission  of any offence by them beyond reasonable  doubt. We therefore, give them benefit of doubt and acquit them.      The  appeal is, therefore, accepted to the extent  that the  acquittal  of  Swaran Singh by the High  Court  is  set aside.   We convict Swaran Singh under section 302, IPC  and sentence  him to life imprisonment.  The appeal is  disposed of  in  these  terms.   Swaran Singh is  on  bail. He  shall surrender to his bail-bonds and undergo the sentence of life imprisonment. R.P.                                     Appeal disposed of.                                                        349